Volkov: The High Court must take an unequivocal and uncompromising position and tell the Special State Prosecutor's Office that it can go no further

If the indictment that the High Court in Podgorica returned yesterday to the Special State Prosecutor's Office (SSPO) for revision - covering businessman Aleksandar Mijajlović, National Security Agency officer Drago Spičanović, police officer Vladan Lazović, former senior police official Milovan Pavićević, prosecutor Andrijana Nastić, and former Democratic Party of Socialists (DPS) official and Minister of Defence Predrag Bošković - ultimately takes effect, it would, according to attorney Mihailo Volkov, plunge Montenegro into an era of darkness and fear.

- The sky will be the limit. That would be extremely dangerous for our society - Volkov said.

FUNDAMENTAL DEFICIENCIES

The panel of judges of the High Court returned the indictment to the SSPO, finding that it contains significant factual deficiencies.

- ...in the Court's opinion, the indictment fails to specify with sufficient precision the acts constituting the criminal offence of forming a criminal organization under Article 401a of the Criminal Code of Montenegro, as charged in Count One. It also contains deficiencies concerning the concept of „benefit“ as an essential element of the offence of abuse of official position under Article 416 of the Criminal Code, as well as with respect to the offence of disclosure of classified information under Article 369, which is a blanket criminal provision. The concept of information classified as „Internal“ is defined by a special law (lex specialis), namely Article 12 of the Law on Data Secrecy, a matter that, in the Court's assessment, the competent prosecution failed to address adequately in the factual description of the indictment – the High Court explained in a statement.

Volkov explained that every issue identified by the panel of judges had already been challenged by the defence throughout the proceedings.

- I maintain that in none of Aleksandar Mijajlović's communications with any person involved in this case, whether a defendant or a witness, is there a single message that could be characterized as an order or instruction issued from a position of authority or coercive power. These are entirely ordinary communications, mostly two-way and sometimes one-way exchanges, with no commanding or directive character whatsoever, even though such a characteristic is one of the constituent elements of the offence under Article 401a of the Criminal Code. My colleagues and I also challenged the indictment on the grounds that it fails to establish the existence of a criminal plan, a common criminal objective, any act of recruitment, or any awareness on the part of the alleged participants that they belonged to a criminal organization or shared the intent to pursue criminal objectives. We disputed every one of those elements. Based on the High Court's statement that I have seen in the media, it appears that the panel of judges shares this view, having found that the indictment does not sufficiently define the acts constituting the alleged offence of forming a criminal organization and that it is also deficient regarding the concept of „benefit“ as an essential element of the offence of abuse of official position.In other words, as I read the Court's reasoning, its primary concern is the prosecution's entire theory of criminalization and the way in which the Special State Prosecutor's Office concluded that a criminal organization even existed. That is my interpretation, but we will see what follows - Volkov told ETV Portal.

PUBLIC DISCREDITING AND TRIAL BY MEDIA

Volkov stressed that he does not want to believe the indictment will ultimately survive judicial scrutiny because, in his view, that would plunge Montenegrin society „into a prolonged period of fear and darkness“.

- We would all begin questioning every conversation we have had with our closest family members over the phone, on social media, or through any other means of communication. It would represent a defeat for society, a serious blow to journalism and freedom of expression. If this indictment were to stand, a period of darkness would inevitably follow - Volkov said.

He added that if the High Court nevertheless „breathes legal life into this indictment“, the result would be „a lengthy and exhausting trial during which individuals will be publicly discredited and subjected to trial by media“.

- And in the end, even if they are acquitted after two or three years, there will never be any real public rehabilitation. A criminal case of this nature deserves to be brought to an end immediately, at the indictment review stage. The High Court in Podgorica should take a clear, uncompromising position and say: „You can go no further“. In my view, by returning the indictment for revision, the High Court has already sent precisely that message, albeit diplomatically, to the Special State Prosecutor's Office – Volkov said.

Mijajlović, Pavićević, Spičanović, Lazović, and Nastić were arrested on 3 October last year amid extensive media coverage describing the operation as one of the largest ever conducted by the Special State Prosecutor's Office and the Special Police Department. Bošković was taken into custody three days later.

It later emerged that the prosecution's case was built exclusively on telephone message exchanges between Mijajlović and the other suspects. In an effort to support its allegations that the businessman had threatened Montenegro's constitutional order, influenced socio-political processes, exercised control over the security sector, influenced the media, coordinated editorial policies, and more, the prosecution also summoned as witnesses the editors-in-chief and directors of nearly every media outlet critical of the current government, along with several officials and Members of Parliament from the Democratic Party of Socialists (DPS), the party that governed Montenegro until 2020.

The indictment was signed by three special prosecutors - Jovan Vukotić, Miroslav Turković and Ivana Petrušić Vukašević - advancing the theory that Mijajlović was a „man behind the scenes“ who controlled Montenegro's socio-political processes until the 2020 elections, when pro-Russian and pro-Serbian political forces came to power, and that he continued attempting to influence and control those processes even afterward.

DRAGGED THROUGH THE MUD

The investigation was initially declared confidential, preventing defence attorneys from disclosing details of witness interviews or other procedural steps. At the same time, however, members of the Special State Prosecutor's Office allegedly provided the daily newspaper Vijesti with information from the investigation, including Mijajlović's private message exchanges, not only with the other defendants, but also with current DPS MPs, journalists, and others.

- Before the suspects were even given the opportunity to present their defence, and before witnesses were allowed to testify, they had already been dragged through the mud and subjected to public lynching. As defence counsel, I was legally bound by confidentiality and prohibited from disclosing any information I had learned during the criminal proceedings. I could not make a single statement to journalists. I went home, and the next morning I read in one newspaper everything I had been required by law to keep confidential. There were witnesses who were not interviewed until two or three months later, yet for months beforehand certain media outlets had been publishing their private messages one by one, reading them aloud publicly and interpreting them. That is deeply troubling. The ultimate objective is public discrediting before any judicial outcome is reached. Everything that has happened in this case suggests that there is a greater desire to discredit people publicly than to obtain a lawful conviction. What concerns me most, however, is that society appears to be getting exactly what it wants. If there were genuine public condemnation of this kind of conduct, such information would never be leaked or published. The entire situation is deeply troubling and extremely alarming. Ultimately, it violates the fundamental presumption of innocence - Volkov warned.

A HIGHLY DANGEROUS LEGAL CONSTRUCT

Volkov recalled that on the night he was called to represent Milovan Pavićević, at around two or three o'clock in the morning at the Special State Prosecutor's Office, he remarked after the interview that „the next day everyone in Podgorica's cafés would be looking through their phones and checking their messages“.

- And that is exactly what happened. The following day, people began questioning what was on their phones and with whom they had communicated. A profound sense of fear spread among citizens. Perhaps that was the very message that was intended - that everyone should live in fear of what kind of legal construct the Special State Prosecutor's Office might devise and how far it might be willing to go in any particular case. That is both extremely dangerous and deeply concerning - Volkov said.

Commenting on the questioning of editors-in-chief, managing editors, and directors of several Montenegrin media outlets, all of them media organizations critical of Montenegro's pro-Russian and pro-Serbian authorities, Volkov was unequivocal in describing the move as an attempt to discipline journalists and independent media.

- This is a backdoor attempt to move journalists from the position of witnesses to the defendants' bench, ultimately creating an atmosphere of fear that forces journalists to question how they should do their jobs, who their sources may be, whom they can communicate with, and what the Special State Prosecutor's Office might ultimately think of those contacts. It is like asking someone to compete in top-level tennis with one hand tied behind their back. I see all of this as a tool of intimidation that has been wielded in Montenegro in recent years. At the same time, I must point out that some of these tactics - despite having no basis not only in law but even in common sense - have nevertheless been accepted by the High Court - Volkov told ETV Portal.

According to Volkov, drawing media professionals into this indictment is socially dangerous and represents an attempt to silence and discredit specific media outlets.

He believes that the High Court in Podgorica „must finally take a firm position that anything which defies basic common sense cannot, by definition, be lawful“.

- This indictment is, first and foremost, contrary to common sense. It is also unlawful and legally unsustainable - Volkov concluded.

RIGHT TO PRIVACY UNDER THREAT

Volkov is convinced that even after being revised, the indictment will not withstand the High Court's review because, in his view, it fails to meet even the most basic legal standards.

- This entire criminal case began when Aleksandar Mijajlović's mobile phone was seized sometime in February 2024. The prosecution most likely accessed the phone, read through the messages, searched for prominent names, and then decided whom they wanted to see sitting in the defendants' dock. Everything I have read in the indictment, together with everything stated during the examination of every witness, unequivocally confirms that there is not a single message sent by Mijajlović to any of the defendants, or by any of the defendants to Mijajlović, or even between Mijajlović and any witness that contains an order, assigns a criminal task, involves prior recruitment into a criminal organization, or demonstrates a shared intention to commit criminal offences. Everything I was able to read, and everything the Montenegrin public was able to read even before the defendants themselves and their defence lawyers had been granted access to the case file, had already been published by one media outlet - it was all ordinary private communication between citizens. Whether someone likes the content of those conversations or not is an entirely different matter. From the standpoint of criminal law, however, it is completely irrelevant. I fear that if the mobile phones of every citizen of Montenegro were searched and their private conversations published, very few neighbours would continue speaking to one another, and many families would fall apart. That is precisely why the rights to privacy and private communication exist - Volkov said.

He specifically referred to the exchange of messages between his client, Predrag Bošković, and Aleksandar Mijajlović concerning the health condition of the late Metropolitan Amfilohije Radović of the Metropolitanate of Montenegro and the Littoral of the Serbian Orthodox Church. According to Volkov, people may approve or disapprove of the content of those conversations, but they do not constitute a criminal offence.

- I ask what exactly in that exchange of messages constitutes the actus reus of any criminal offence? And why is it necessary for the late Metropolitan Amfilohije's medical records to occupy four full pages of the evidentiary material attached to this indictment? What does that prove? This indictment represents a profound intrusion into personal privacy. It undermines fundamental legal principles and has created an atmosphere of fear among the public. It has demonstrated that nothing is considered sacred anymore, least of all our most intimate right, the right to privacy - Volkov concluded.

The Special State Prosecutor's Office has been given three days to remedy the deficiencies identified in the indictment.